Legalese — Executive Orders

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If you’ve lived in the United States in the past 12 months, and you’ve been paying the least bit of attention, it is difficult to imagine you haven’t heard the phrase “executive order.”

So what exactly is an executive order? What can it do, and what can’t it do?

An executive order is not much more than a memo written by the President of the United States that is a directive about what a federal agency or department should or shouldn’t do. It has the same weight as federal law but, theoretically, can’t contradict federal law. Congress can (also theoretically) pass a law that undoes an executive order, but the President has the power to veto the law.

Executive orders are fairly common, and every single president from Washington to Trump has used them for varying purposes. Washington, for example used them to order the troops to be inspected, and to declare the celebration of Thanksgiving.

There is no precise authority for executive orders. They come from Article II of the U.S. Constitution which says that the President “shall take care that the Laws be faithfully Executed.” Which is a vague enough clause to derive power from.

The Federal Courts have ruled over the years about Executive Orders, at times finding them appropriate, and at times overruling them. Abraham Lincoln, for example, signed an executive order suspending the right of Habeus Corpus during the Civil War. Congress, who would normally do such a thing in time of ‘invasion,’ was in recess at the time and so couldn’t do it itself. In Ex Parte Merryman the Courts found that this suspension of a right was exclusively Congress’ to suspend. In an interesting power play, everyone simply ignored the Court’s decision and kept it suspended. When Congress came back in session, they ignored it, too.

FDR established both the Japanese Internment Camps and the Work Progress Administration via executive order. No one argued with either of these through the courts.

During the Korean War, President Truman used an executive order to commandeer steel plants for military use. In Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). In that decision, the Court said, “In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute.”

Executive orders were (properly) used during the civil rights movement, when President Eisenhower issued an executive order to the National Guard to ensure that the civil rights laws were carried out. That is squarely within the definition of executive action.

I’ve seen a lot of memes lately about the number of executive orders that have been made by varying presidents. I have yet to see one that is factually correct. Some real numbers, based in fact:

Franklin Roosevelt issued the greatest number of executive orders: 3,728 in the period of time that encompassed both the depression and WWII.

President Truman issued 896 executive orders.

Jimmy Carter issued them most frequently – averaging 80 per year.

George W. Bush issued 291 in 8 years, and Barack Obama issued 276 in 8 years.

As of September 15, 2017, according to the Office of the Federal Register, whose job it is to keep track of such things, so far, President Trump has issued 45, putting him on track to issue about 270 at the end of a 4-year term.

Nothing in this article should be construed as legal advice. It is being offered for informational purposes only.

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